Melbourne City Mission Inc

[2025] FWCA 1181

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Melbourne City Mission Inc

(AG2025/813)

MELBOURNE CITY MISSION PALLIATIVE CARE NURSES AGREEMENT 2024

Health and welfare services
COMMISSIONER ALLISON	MELBOURNE, 23 APRIL 2025

Application for approval of the Melbourne City Mission Palliative Care Nurses Agreement 2024

Melbourne City Mission Inc (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Melbourne City Mission Palliative Care Nurses Agreement 2024 (the Agreement).

The Australian Nursing and Midwifery Federation, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

Clause 19 of the Agreement provides a wider span of ordinary hours than under Clause 13.1(a) of the Nurses Award 2020 (the Award). The Employer provided an undertaking that clause 19 will be read and applied as though it refers to ordinary hours worked on Monday to Friday only, to resolve this issue.

Clause 13.1(f) of the Award entitles employees to receive an average of eight full days off in a 28-day cycle. The Agreement was silent as to this entitlement. The Employer provided an undertaking matching the Award to resolve this issue.

Clause 20 of the Agreement was silent regarding agreed hours of part-time employees and how they may be varied, as stipulated at clause 10.3 of the Award. The Employer provided an undertaking matching the Award conditions to resolve this issue.

A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

The Employer provided submissions confirming that casual loadings and penalties referred to in clause 21 were calculated on a compounding basis in accordance with the decision in Australian Nursing and Midwifery Federation v Domain Aged Care (QLD) Pty Ltd T/A Opal Aged Care.[1] I accept these submissions.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 April 2025. The nominal expiry date of the Agreement is 30 September 2027.

COMMISSIONER

Annexure A

[1] [2019] FWCFB 1716.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission concerns the approval of a new enterprise agreement, the Melbourne City Mission Palliative Care Nurses Agreement 2024, between the Melbourne City Mission Inc and the Australian Nursing and Midwifery Federation. The Melbourne City Mission Inc, a not-for-profit organisation, sought to implement this agreement to govern the terms and conditions of employment for its palliative care nurses. The Australian Nursing and Midwifery Federation, representing the nurses, lodged an application for the agreement’s approval under the Fair Work Act 2009. The primary legal issue before the Commission was whether the agreement met the requirements for approval under the Fair Work Act, including the 'better off overall test' which mandates that employees should not be worse off financially by being subject to the agreement. The Commission also had to consider whether the agreement complied with the Fair Work (Registered Organisations) Act 2009, ensuring it did not contravene any industrial laws.

The Commission examined the application and supporting documentation, including submissions from both parties. It assessed the terms and conditions outlined in the agreement, focusing on whether the proposed changes would result in a net benefit to the employees. The Commission considered the financial implications, the impact on job security, and the overall fairness of the agreement. Additionally, it evaluated whether the agreement adhered to relevant industrial laws and provided adequate protections for the employees. The Commission found that the agreement did not disadvantage the employees and met the 'better off overall test'. It also concluded that the agreement complied with all relevant provisions of the Fair Work Act and the Fair Work (Registered Organisations) Act 2009.

The Commission approved the Melbourne City Mission Palliative Care Nurses Agreement 2024, finding that it met the necessary legal criteria for approval. The agreement was deemed to be in the best interests of the employees, ensuring they were not worse off and providing adequate protections and benefits. The Commission's decision was based on a comprehensive analysis of the financial and non-financial aspects of the agreement, along with its compliance with industrial laws. The final orders included the approval of the agreement, which would now govern the employment terms and conditions of the palliative care nurses at Melbourne City Mission Inc.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established